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Snowden may use a trial to showcase spy claims

21 January 2014, 13:51

Washington - Should Edward Snowden ever return to the US, he would face criminal charges for leaking information about National Security Agency surveillance programmes. But legal experts say a trial could expose more classified information as his lawyers try to build a case in an open court that the operations he exposed were illegal.

A jury trial could be awkward for the Obama administration if the jurors believe Snowden is a whistle-blower who exposed government overreach. Snowden surely would try to turn the tables on the government, arguing that its right to keep information secret does not outweigh his constitutional right to speak out.

"He would no doubt bring First Amendment defences to what he did, emphasising the public interest in his disclosures and the democratic values that he served", said David Pozen, a Columbia Law School professor and a former legal adviser at the state department. "There's been no case quite like it." The First Amendment of the US Constitution guarantees freedom of speech and other basic rights.

Administration officials say the possibility of a public spectacle wherein Snowden tries to reveal even more classified information to make his case has not lessened the justice department's intent to prosecute him, and attorney general Eric Holder has not warmed to calls for clemency for the former National Security Agency systems analyst.

Department spokesperson Andrew Ames last week indicated there was no change in the department's intent to prosecute, and that point was reinforced by National Security Council spokesperson Caitlin Hayden.


"There's been no change in our position: Mr Snowden is accused of leaking classified information and faces felony charges here in the United States", Hayden said. "He should be returned to the US as soon as possible, where he will be accorded full due process and protections."

A former NSA general counsel, Stewart Baker, drawing from conversations with his former associates after New York Times and Guardian editorials called for clemency, said the issue "has been more of a media idea than something that is being seriously debated inside the government".

Both newspapers, along with The Washington Post, have received and reported on some of the documents Snowden took.

"I haven't talked to anyone in government who considers this a possibility", Baker said.

Officials have called Snowden's leaks the single largest theft of secrets in US history.

The justice department breaks those alleged misdeeds into three charges filed in federal court in Virginia: theft of government property; and under the Espionage Act, the unauthorised communication of national defence information; and wilful communication of classified communications, intelligence information to an unauthorised person. Each of the three charges carries a maximum sentence of 10 years in prison on conviction.

A November Washington Post/ABC News poll found 52% of Americans supported charging Snowden with a crime, while 38% opposed it.

Escape punishment

Snowden has admitted taking and distributing the documents, explained Jason Weinstein, a former deputy assistant attorney general. The documents were first published in the Guardian and the Post in June, based on some of the thousands of documents Snowden handed over to Barton Gellman of the Post, Brazil-based American journalist Glenn Greenwald and Laura Poitras, a US filmmaker.

It would be tough, too, to make a legal argument that Snowden was acting as a whistle-blower, exposing criminal wrongdoing by the government.

"To the legal argument that the programmes were illegal, the government's answer would be that the programmes were legally authorised", Weinstein said.

"Your personal judgment as to whether the government is doing something illegal is not an element of the crime. You disclosed something you did not have permission to disclose."

No court has allowed a leaker of classified information to escape punishment on those grounds, Pozen wrote in a Lawfare blog post on the subject.

The first person convicted of espionage for furnishing classified data to a journalist was Samuel Loring Morison, who was employed at the naval intelligence support Centre in Suitland, Maryland, from 1974 to 1984. He was convicted of spying for leaking intelligence photographs in 1984 to Jane's Defence Weekly, a British military magazine. Morison was sentenced to two years in jail, and later was pardoned by President Bill Clinton.

The Obama administration has pursued leakers aggressively, and Snowden's breach was far more sweeping than Morison's.

Snowden's defence strategy could rest on "graymail", said national security lawyer Mark Zaid, in which the defence threatens to reveal classified information in the trial if the prosecution insists on pursuing the case.

Zaid, who has defended clients in similar cases, said that could force government lawyers to argue to close much of the hearings, only feeding Snowden's argument that the government is trying to hide misdeeds from the public behind a cloak of secrecy.

Snowden's legal representative, Ben Wizner at the American Civil Liberties Union, said the government likely would not ever let the jury hear his client's arguments for releasing the information on moral grounds.

- AP


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